By Dr Abhishek Atrey
Recently during a keynote address at the National Annual Stakeholders Consultation on Child Protection, Chief Justice of India (CJI) DY Chandrachud, asked lawmakers to address the “growing concern” on the criminalisation of adolescents who engage in consensual sexual activity under the Protection of Children from Sexual Offences (POCSO) Act. The 2012 Act fixes the minimum age of consent at 18. “As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” the CJI said.
This statement has sparked a conversation again among jurists who are bound by law because under the POCSO Act and the Indian Penal Code (IPC), any sexual act with a female below 18 years of age does amount to rape and her consent has no meaning.
A detailed report by the Indian Institute of Population Studies states that among those people who reported to be in pre-marital romantic partnerships, 42% of men and 26% of women admitted to engaging in sex with their partners, with a sizeable number being under the age of 18. Therefore, criminalising sex between adolescents in a society where it is quite prevalent would lead to making thousands of men susceptible to rape cases whenever the issue of lack of consent comes up.
Such instances were seen in the United States where the age of consent was increased to 18. In certain states, it was noted that 41% of the total rape cases were false. It must also be stressed that 16 to 18 are the ages when adolescents undergo many hormonal changes, so any case where there is a fallout between a couple and the girl accuses her partner of rape, the minor boy would be left with no legal recourse at all.
Recently, the Union home ministry said in Parliament that the conviction rate in rape cases increased from 27.2% in 2018 to 39.3% in 2020. Therefore with a 60% acquittal rate, we cannot ignore the possibility of registering false cases of rape. Different High Courts on several occasions have granted bail to accused persons where they saw that the couple was residing together happily, irrespective of fact that the alleged incident of rape happened when the girl was below 18 years. The Punjab and Haryana High Court in Gulam Deen vs State of Punjab gave protection to a Muslim couple in which the girl was 16 years and the boy was 36 years. However, against this order, the National Commission for Protection of Child Rights filed a Special Leave Petition (SLP) with the application for permission to file it. The Supreme Court granted permission and issued notice to examine the question of law relating to age of girls to marry under the Muslim law.
According to Section 5 of the Hindu Marriage Act, 1955, Section 4 of the Special Marriage Act, 1954 and Section 60 of the Indian Christians Marriage Act, 1872, the minimum age of marriage of a girl is 18 years and that of a boy is 21 years in India. According to Section 375, any kind of sexual intercourse, with or without consent, when the girl is under 18 years of age, is rape. However, Exception 2 of Section 375 has kept out sexual intercourse or sexual act by a man with his own wife above 15 years of age from the definition of rape, but Exception 2 was struck down by the Supreme Court in 2017 in the case of Independent Thought by holding the same in violation of Articles 14, 15 and 21 and in contravention of the POCSO Act, 2012, and the Juvenile Justice (Care and Protection of Children) Act, 2015.
Dignity of an individual, right to privacy and right to take decisions regarding sexuality by individuals have always been supported positively by the Supreme Court which can be seen in its several judgments. A nine-judge bench of the Supreme Court in KS Puttaswamy held that right to privacy is a fundamental right under Article 21 of the Constitution. In the case of Navtej Johar, the Supreme Court struck down that part of Section 377 of the IPC which criminalises consensual sexual relationship between homosexuals, heterosexuals and lesbians. In another case of Joseph Shine, the Supreme Court struck down Section 497 of the IPC regarding adultery along with corresponding Section 198 of the Criminal Procedure Code. Therefore, it can be seen that the Supreme Court on several occasions has emerged as a custodian and guardian of the individual rights of the citizens of India, and even gone to the extent of striking down laws which were placing embargo on the freedom, privacy and individual decisions regarding sexuality.
Under the Indian Penal Code, 1860, the age of consent was only for girls and was initially pegged at 10 years. This was raised to 12 in 1891, 14 in 1925, 16 in 1940 and 18 in 2013. Sexual activity with a girl below the prescribed statutory minimum age amounted to rape, irrespective of the girl’s consent. We did not have any age of consent for boys, and it was only in 2012 that our lawmakers woke up to the possibility of sexual abuse of minor boys. In 2012, a gender-neutral legislation was passed for the protection of children against sexual offences. POCSO fixed the age of consent for both boys as well as girls at 18.
The Child Marriage Restraint Act, 1929, popularly known as the Sarda Act, prescribed the age of marriage as 14 for girls and 18 for boys. This was later raised to 18 and 21 for girls and boys, respectively, in 1978. This has now been repealed and replaced by the Prohibition of Child Marriage Act, 2006. Article 16 of the Convention of Elimination of Discrimination against Women (CEDAW) deals with marriage and family. It says child marriages should not have legal effect. India signed CEDAW in 1980, but still child marriages are treated only as voidable and not void. Thus, till a child bride applies to get her marriage annulled, the marriage is deemed as perfectly valid.
By application of present criminal laws, a girl below 18 cannot be allowed to have sex even if she is lawfully married, and above 18 she cannot say no because there is a presumption of matrimonial consent. Under Article 8 of the European Convention on Human Rights, the concept of the right of private life includes the right to sexual life. The concern here is regarding the way the age of consent is interpreted and applied in our country. Ours is a closed society where love is taboo and public display of affection is frowned upon. Honour killings are a stark testimony of our dark underbelly. Thus, there are so many cases where the desire for togetherness compels young couples to elope. In all such cases, the girl’s father invariably registers a case of kidnapping against the boy, and once the girl again comes under the custody of her parents, she is compelled to file a case of rape against the boy under family pressure. It is convenient for adults to put curbs on teenage sexuality rather than deal with related issues. By criminalizing even consensual sexual activity, we are denying them access to protective measures as well as safe medical procedures.
Criminalizing consensual sexual activities among adolescents will have a negative impact. Almost all countries have a minimum age for sexual consent. Most countries set this age between 14 and 16 years. The lowest minimum age is 14 years in countries like Austria, Bulgaria, Estonia, Germany, Hungary, Italy, Portugal, etc., and the highest is 18 years in countries like India and Pakistan. Some states in the US penalize sexual activity only where the age gap between consenting minors is more than 3 or 4 years or the accused is in a position of authority and the victim is forced to give her consent.
It is clearly time to revisit the age of consent to adjust it with the reality of the times.
—The writer is Advocate-On-Record, Supreme Court of India